Quick summary: In Guatemala, who keeps the children is governed by the Civil Code (Decreto-Ley 106). From the moment a divorce or separation is filed, the children stay provisionally with the spouse the judge designates (Art. 162). Parents may agree who keeps them, but the judge may decide otherwise for serious and reasoned causes, using social-work reports (Art. 166). If the parents are neither married nor in a de facto union, the children are in the mother’s care unless she agrees otherwise (Art. 261). The other parent keeps the right to relate with the children (Art. 167), and the arrangement can be revisited at any time when new facts arise (Art. 168).
Checked October 21, 2026 against the annotated Civil Code updated to August 8, 2025, published by the CENADOJ (Centro Nacional de Análisis y Documentación Judicial) of the Organismo Judicial. Only the article text is used, not the case-law commentary in that edition. Article content below is paraphrased in English from the Spanish text.
If a parent took the child to another country (or brought the child to Guatemala), that is a different procedure: see the Hague Convention and child custody between Guatemala and the US.
Who Keeps the Children, by Situation
| Situation | Civil Code rule | Article |
|---|---|---|
| Separation or divorce has been filed | The children stay provisionally with the spouse the judge designates until the final decision, unless serious causes require entrusting them to a provisional guardian | 162 |
| Divorce or separation by mutual agreement | The draft settlement must state who the children are entrusted to and who feeds and educates them (and in what share, if both) | 163, 1st and 2nd |
| Divorce or separation on specific grounds | The judge decides those same points | 165 |
| Parents reached an agreement | The agreement stands, but the judge may decide otherwise for serious and reasoned causes, considering the children’s welfare | 166 |
| Parents neither married nor in a de facto union | The children are in the mother’s care unless she agrees they go to the father or that they are placed in an educational institution | 261 |
| The parents’ conduct harms the child and suspension or loss of parental authority is sought | The judge takes urgent measures and may place the child with the closest relative, another person of recognized honor or an educational center while deciding | 262 |
| New facts arise later | The judge may at any time issue measures beneficial to the children | 168 |
In both kinds of divorce, Article 165 bars granting the separation or divorce until the children’s food and education are sufficiently guaranteed.
What the Judge Can Do (Art. 166)
- Uphold the parents’ agreement on who the children are entrusted to.
- Depart from it only for serious and reasoned causes, considering the children’s welfare.
- Decide custody and care based on studies or reports by social workers or bodies specialized in child protection.
- In every case, ensure the parents can communicate freely with the children.
Above any settlement or judgment, Article 167 keeps both parents bound by their obligations to the children, with the right to relate with them and the duty to oversee their education. The Spanish text reads: “conservan el derecho de relacionarse con ellos y la obligación de vigilar su educación”.
What a Divorce Settlement Must Say About the Children
In a divorce by mutual agreement, Article 163 requires a draft settlement on these points:
| Point | What to decide | Article |
|---|---|---|
| 1st | Who the children born in the marriage are entrusted to | 163, 1st |
| 2nd | Who pays to feed and educate the children; if both parents, in what proportion each contributes | 163, 2nd |
| 3rd | What support the husband must pay the wife if she has no income of her own sufficient for her needs | 163, 3rd |
| 4th | The guarantee given for the obligations in the settlement | 163, 4th |
The judge assesses the guarantee and orders it increased if it is not sufficient (Art. 164). The full divorce procedure is on judicial divorce in Guatemala; amounts and enforcement of support are on child and spousal support.
Custody and Parental Authority Are Not the Same
| Parental authority (patria potestad) | Custody (who the child lives with) | |
|---|---|---|
| Who holds it | Father and mother jointly in marriage and in a de facto union; in any other case, the parent who has the child (Art. 252) | Set by the settlement or the judge (Arts. 162 and 166), or by the Art. 261 rule for parents neither married nor in a de facto union |
| Duties | Care for, support, educate and correct the children with prudent discipline, whether or not born in marriage (Art. 253) | The parent without custody remains bound by these obligations (Art. 167) |
| Where the minor lives | With the parents, or with the parent who has the child in their charge; the minor may not leave that home without permission (Art. 260) | Per the settlement or the court order |
Article 253 adds that parents who morally or materially abandon their children and fail the duties of parental authority are liable under criminal law.
If the Other Parent Takes the Child
Article 261 makes anyone who takes a child outside legal channels (por vías de hecho) from the person legally in charge of the child liable under the law, and requires the authorities to help return the child. If the child was taken out of the country, see the Hague Convention page.
Related Procedures
- Judicial divorce in Guatemala
- Child and spousal support
- Ending a de facto union
- Hague Convention and child custody: US and Guatemala
- Passport for minors
General guidance on Guatemala’s Civil Code, not legal advice. How a court applies these articles depends on the evidence and the reports in each case; consult a Guatemalan lawyer.